(From Original Conviction and Sentence of Hon. Nelly W. Kariuki (PM) in the Chief Magistrate’s Court at Shanzu, in Sexual Offence Case No. E063 of 2021 dated 15^th December, 2022)

Introduction

1. The Appellant was charged before the Chief Magistrate Court in Shanzu with the offences of:-

CHARGE: Attempted Defilement contrary to section 9(1) as read with section 9 (2) of the Sexual Offences Act No.3 of 2006. Particulars of the same being that on 11^th April 2017 at Mnazi Moja area, within Nyali sub-county within Mombasa County, the accused person intentionally and unlawfully attempted to cause his penis to penetrate the vagina of NK, a child aged seven years.

ALTERNATIVE COUNT: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act no. 3 of 2006. On 11^th April 2017 at Mnazi Moja area, within Nyali sub-county within Mombasa County, the accused person intentionally and unlawfully touched the vagina of NK, a child aged 7 years with his penis.

1. The Appellant was charged, he denied the charges and the trial court put down the case for hearing. The prosecution called 3 witnesses and at the close of the prosecution’s case, the trial court found the Appellant with a case to answer; put him to his defence, convicted and sentenced ten (10) years imprisonment.
2. Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:
3. THAT the learned trial court magistrate erred in law and facts by convicting HIM, the appellant to 10 years imprisonment without considering that the charge of attempted defilement was not proved beyond reasonable doubt.
4. THAT the learned trial court magistrate erred in law and facts by convicting  the appellant to 10 years imprisonment without considering that he was denied a right to a fair trial pursuant to article 50(2)(p) of the constitution.
5. THAT the learned trial court magistrate erred in law and facts by convicting him to 10 years imprisonment without considering his reasonable defence.
6. For the reasons advanced in his Petition of Appeal, the Appellant prayed for his Appeal to be allowed, the conviction quashed and sentence set aside.

The Prosecution’s case

1. The prosecution called three (3) witnesses in support of its case. The evidence was as hereunder;
2. That on 11.4.2021, JAO (PW2) was at her palm wine business in the Mnazi Moja area within a plot, in the company of her child NK (PW1 and complainant) and her friend A (minor-name withheld). She sent the children to go and wash dishes in a room reserved for her business. As they went, she received the accused person, a customer, who wanted a place to rest. She requested him to give her his phone and wallet for safekeeping and showed him where to lie down.
3. As she went to serve a new customer palm wine, she found A on the veranda. She ran away when she saw JAO, causing the latter to be concerned. She went to the room where she expected to find NK but did not find her. As she looked for her, she heard her voice in the room where she had directed the accused person to lie down. She found him naked, lying on top of NK, whose biker had been removed. They lay down on a carton box spread out on the floor. She locked the door and called for help from her customers.
4. They came back to find the accused person wearing his clothes. They reported the matter to the Nyali Police station. JAO and NK were directed to Coast General Hospital by PC Wilfred Nyange (PW3), where she was examined the next day. He arrested and charged with the offence before Court

The Defence case

1. The appellant gave his sworn defence and told the court that he was asleep in their house with his wife when JAO knocked on their door. She asked him for Kshs 10,000/- to pay off the police as her customers had been arrested. He gave her Kshs 8,000/- as it was all he could afford, considering that the money belonged to his Chama. She added Kshs 2,000/-, which she had, and gave it to PC Mwangi. He removed the palm wine and kept it in his house. The next day, they entered into a written agreement where she undertook to pay him back Kshs 10,000/- plus Kshs 300/- as commission, in 30 days. On 14^th March, 2021, he went to see her, but, she was not in a position to pay it back. She asked him to see her on 20^th March, 2021 even if she only had half of the money.
2. He forwarded the issue to the village elder. They discussed the matter there, and she promised to pay the money back by 10^th April, 2021. On that day, he visited JAO, only to find her drunk and beaten. The next day, he got a call from Auma, JAO's sister and his mistress. She asked him to meet him at a social place called Makuti in the Lights area. He alighted there only to meet her in the company of three police officers. He was escorted to Nyali police station, where he found JAO waiting. She identified him as Baba Brian to the police. He claimed that the charges were strange to him.

Analysis and Determination

1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
2. The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32. In this case the court stated-;

“The duty of the 1^st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-

The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

The court of appeal further stated that – “ an appellant on a 1^st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.

In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.

1. In the  case of Gabriel Kamau Njoroge – Versus -  Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”

1. Having reviewed the trial Record, the grounds of appeal and the parties’ submissions, the two main issues for determination are as follows: -
2. Whether the Appellant had been accorded the right to a fair trial pursuant to Article 50(2)(p) of the Constitution.
3. Whether or not the Prosecution proved its case beyond reasonable doubt; and
4. Whether the Honourable Trial Court considered the Defence by the Appellant.

Issue a. Whether the Appellant had been accorded the right to a fair trial pursuant to Article 50(2)(p) of the Constitution.

1. Article 23(1) of the Constitution provides that:

The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

1. In this case it is alleged that the right that was violated was the right to fair trial under Article 50(2) of the Constitution. The said Article 50(2)(k) and (p) provides that every accused person has the right to a fair trial, which includes the right to adduce and challenge evidence; and to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. That right according to Article 25(c) of the Constitution cannot be limited. That was the position adopted by the Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa which provides that:

“The right to a fair trial is a fundamental right, the non-observance of which undermines all other human rights. Therefore the right to a fair trial is a non-derogable right, especially as the African Charter does not expressly allow for any derogations from the rights it enshrines.”

1. On the issue of the right to fair trial, the Supreme Court of India in the case of Natasha Singh – Versus - CBI {2013} 5 SCC 741 expressed itself as follows:-

“Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized.”

1. A miscarriage of justice was discussed by the same Court in the case of Zahira Habibullah Sheikh & Another – Versus - State of Gujarat & Others AIR 2006 SC 1367 where it opined that:-

“It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted…Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, the condemnation should be rendered only after the trial in which the hearing is a real one, not a sham or mere farce and pretence….The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.”

1. It is therefore my view that sentencing being part of the trial, the right to fair trial enjoins the Court to ensure that an accused is accorded an opportunity to adduce and challenge evidence that may either aggravate or reduce his sentence before the sentence is imposed. For the Court to arbitrarily impose a sentence without considering the mitigating circumstances disclosed by an accused person amounts to a violation of the right to fair hearing and trial. However, at an appellate stage where the appellant was accorded an opportunity to mitigate by the trial court, the appellate tribunal may take into account such mitigating circumstances on record without necessarily reopening the mitigation. In the event however, that no opportunity was afforded by the trial court, it behoves the appellate court to afford the appellant such an opportunity before a fresh sentence is imposed. In those circumstances, it is my view that it may be prudent to refer the matter back to the trial court to reconsider the sentence based on the mitigating circumstances in order not to deny the appellant his constitutional right to appeal against the sentence which may be the case where the appellate tribunal takes mitigating evidence and then proceeds itself impose the sentence. Up to this point the Appellant has not shown this Court any evidence to show that his right to a fair trial was infringed.

Issue b. Whether or not the Prosecution proved its case beyond reasonable doubt

1. Starting with the first issue, to establish a charge of attempted defilement, the prosecution must prove beyond doubt all the ingredients of the offence of defilement except penetration which is what completes the offence of defilement.  The prosecution must therefore prove that the victim was a child within the meaning of the Children’s Act; that the accused was positively identified as the assailant and the overt acts or steps taken by the accused towards committing the offence of defilement which was not completed.  
2. An attempt to commit an offence is defined in Section 388 of the Penal Code as follows:

“1. When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

2.  It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

3.  It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.”

1. In order to prove  an attempt to commit an offence the prosecution must prove the mens rea which is the intention and the actus reus which constitute the avert act which is geared to the execution of the intention.  The actus reus must be more than mere preparation to commit the act as there is a  distinction between  mere preparation to commit an offence and attempting to commit an offence ( see Abdi Ali Bere – Versus – Republic (2015) EKLR.
2. The Sexual Offences Act provides for the offence of attempted defilement under section 9 as follows:-

“9.Attempted defilement

(1)A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.

(2)A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.

(3)The provisions of section 8(5), (6), (7) and (8) shall apply mutatis mutandis to this section.”

1. In the case of John Gatheru Wanyoike – Versus -  Republic [2019] eKLR, the court held that: -

“It is clear that the elements of the offence of attempted defilement are similar to those of defilement save that there was no penetration. The prosecution must prove that the child was a minor, that there was an act to cause penetration, which was not successful, and that there was positive identification of the accused defiler.”

1. Thus, this Court will analyse the evidence from the trial Record to determine the following ingredients of the offence of attempted defilement: -
   1. Whether the age of the complainant was proved.
   2. Whether there was an act to cause penetration, which was not successful.
   3. Whether the Appellant was positively identified by the minors as their assailant

The age of the victim

1. It is an accepted principle that the age of a victim in sexual offences is a paramount ingredient which can be proven by documentary evidence, observation or common sense, by the testimony of a parent or medical evidence (age assessment). This principle is pegged on the fact that, from the establishment of the age of a victim comes the requisite punishment prescribed by the law. The Court of Appeal in the case of Edwin Nyambogo Onsongo – Versus -  Republic (2016) eKLR stated as follows on the proof of age;

“... the question of proof of age has finally been settled by recent decision of this court to the effect that it can be proved by documents, evidence such as birth certificate, baptism, card or by oral evidence of the parents or the guardian or medical evidence among other credible form of proof. We think that what ought to be stressed is that whatever the nature of the evidence preferred in proof of the victims age it has to be credible and reliable.”

See also the case cited by the respondent – Joseph Kieti Sect Vs Republic, (Supra) where it was stated that “it is trite law that the age of the victim can be determined by medical evidence and other cogent evidence.”

In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that “in defilement cases medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determined the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.”

1. The importance of proving age in a Sexual Offence case cannot be gainsaid. In the case of Kaingu Kasomo – Versus -  Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal stated as follows:

“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”

1. In the present case, the prosecution has adduced evidence of the age of the victim according to the clinic card which indicated that the victim was 7 years having been born on 24^th April, 2014.  Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years.  Given the above evidence, I am satisfied that in this case, the prosecution adduced credible evidence to prove that the complainant was indeed a child at the time the offence was allegedly committed

Attempted Penetration

1. According to the prosecution, the Appellant attempted to defile the victim. This the prosecution tried to demonstrate with the evidence of PW 1 the victim and PW 2 the mother of the victim who the Appellant argued had loaned him money. It follows then that, the Court must thoroughly test this evidence from the minor before it can draw any conclusions from it.
2. Section 124 of the Evidence Act provides exceptions to when the Court can convict on the sole evidence of a minor in the absence of medical evidence. The Court of Appeal sitting in Nyeri in the case of George Kioji – Versus - Republic, Criminal App No 270 of 2012 held as follows:-

“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”

1. In this case however there was no medical evidence adduced to show that the victim was penetrated or the Appellant attempted to defile the victim. Other than the PW 2’s evidence there is no evidence linking the Appellant to the offence; from the evidence of PW 2 if the Court was to go by it, being on top of the complainant cannot by itself alone be said to constitute “an act which would cause penetration to a child” for it to amount to attempted defilement.
2. Further for the Appellant to have been convicted the prosecution ought to have proved that he committed an act which would cause penetration which is defined as a partial or complete insertion of the genuine organ of a person into the genital organs of another person .
3. I shall  get to whether there was proof of this attempt alongside the analysis of the identification and the defence raised.

Identification/Recognition

1. As in any criminal offence, the positive identification of a person is what connects them to that offence. It is therefore extremely important that any evidence on identification must be thoroughly and carefully scrutinized to avoid any miscarriage of justice. In the case of Kariuki Njiru & 7 others – Versus - Republic,  Criminal Appeal no. 6 of 2001 (Unreported) the court held as follows:

“Law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”

1. Further to the above, it is well settled law that recognition may be more reliable than identification of a stranger. However caution must always be taken where a witness is purporting to recognize someone that they know since even in such cases mistakes may sometimes be made. (see R – Versus -  Turnbull & Others [1976] 3 ALL ER 549).
2. On the identity of the perpetrator; the evidence the parties were well known to each other so that was easy to prove.

Issue c. Whether the Honourable Trial Court considered the Defence by the Appellant;

1. In his defence, the Appellant in the trial court told the court that he was asleep in their house with his wife when JAO knocked on their door. She asked him for Kshs 10,000/- to pay off the police as her customers had been arrested. He gave her Kshs 8,000/- as it was all he could afford, considering that the money belonged to his Chama. She added Kshs 2,000/-, which she had, and gave it to PC Mwangi. He removed the palm wine and kept it in his house. The next day, they entered into a written agreement where she undertook to pay him back Kshs 10,000/- plus Kshs 300/- as commission, in 30 days. On 14^th March, 2021, he went to see her, but, she was not in a position to pay it back. She asked him to see her on 20^th March, 2021 even if she only had half of the money. 
2. He forwarded the issue to the village elder. They discussed the matter there, and she promised to pay the money back by 10^th April, 2021. On that day, he visited JAO, only to find her drunk and beaten. The next day, he got a call from Auma, JAO’s sister and his mistress. She asked him to meet him at a social place called Makuti in the Lights area. He alighted there only to meet her in the company of three police officers. He was escorted to Nyali police station, where he found JAO waiting. She identified him as Baba Brian to the police. He claimed that the charges were strange to him.
3. I have gone through the record and it is evident that the Appellant’s defence was not considered and the Court did not put the fact that there were issues between the complainant’s mother and the Appellant.    The complainant mother testified that when the accused person went to her premises , she took his phone and wallet for safe keeping.  This points to a close  relationship as it is not in the ordinary cause of business for people to hand over their property or personal effects to strangers.
4. The issue of the phone and wallet, together with the fact that she was offering the appellant a room to sleep, indeed points to some close relationship.   It would appear that this was a place where traditional brew was sold and this also highlights the dangers of having young children at such premises.
5.   The lengthy defence by the accused person  made me doubt the evidence of PW2 AND PWI. The state ought to have called the other minor who was said to have been present  to  clear any doubt. For now, I am inclined to find that this was more a financial feud which the Complainant’s mother escalated to a criminal offence.
6. For this reason I find that the Appellant has succeeded in TWO of  his grounds of appeal herein as the Court finds the Appeal meritorious.

Conclusion and Disposition

1. I am satisfied that the evidence by the Prosecution before the trial court did not prove an offence of attempted defilement beyond reasonable doubt.  I consequently quash the conviction of the appellant Alex  Mutua and set aside the sentence of ten (10) years imprisonment imposed.  I direct that the appellant Alex Mutua be set at liberty unless otherwise lawfully detained.

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …19th….…………DAY OF ……December………………….……., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

APPELLANT PRESENT.